Pendleton v. WV Division of Corrections et al

Filing 98

MEMORANDUM OPINION AND ORDER directing (1) the plaintiff's 88 Objections to the Proposed Findings and Recommendation are overruled; (2) the magistrate judge's 87 Proposed Findings and Recommendation are adopted and incorporated in full; (3) the defendants' 73 Supplemental Motion to Dismiss is granted; and(4) this civil action be dismissed and stricken from the docket of the court. Signed by Judge John T. Copenhaver, Jr. on 3/27/2019. (cc: counsel of record; any unrepresented parties) (kew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
RICKY VINCENT PENDLETON,
Plaintiff,
v.

Civil Action No. 2:15-cv-01903

KELLI HINTE, SHERRIE SNYDER,
and CHERYL CHANDLER,
Defendants.
MEMORANDUM OPINION AND ORDER

Pending is the defendants’ supplemental motion to
dismiss plaintiff’s amended complaint,1 filed August 17, 2016.
This action was previously referred to the Honorable Dwane L.
Tinsley, United States Magistrate Judge, for submission to the
court of his Proposed Findings and Recommendation (“PF&R”) for
disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

I.

Background

Plaintiff Ricky Vincent Pendleton is an AfricanAmerican prisoner incarcerated at the Mount Olive Correctional
Complex (“Mount Olive”).

1

On August 13, 2014, plaintiff was

The plaintiff timely filed his amended complaint on March 2,
2015. The amended complaint was written entirely by the
plaintiff and added Officer Boggs, who has since been dismissed,
as a defendant. ECF No. 8.

placed in punitive segregation for violating prison rules,
namely, an encounter with Officer Erin Linville and possessing
contraband consisting of a pair of Department of Corrections
issued sweatpants and shorts which had been altered to add
pockets contrary to prison rules.

See Defs.’ Mem. Supp. Mot.

Dismiss, ECF No. 23-1, at 9-10.

The plaintiff was charged with compromising Officer
Erin Linville, who stated that the plaintiff “Asked me if I were
nervous, this is prison after all” and told her “You don’t need
to be worried, not while I’m around.”

Id. at 10.

The plaintiff

had also been placed in punitive segregation in 2012 for
compromising an employee of Mount Olive, Susan Trent.

Id. at

11.

As stated by the defendants in their original
memorandum in support of their motion to dismiss, “punitive
segregation is for one or two months and it is a punishment for
an inmate’s violation of a prison disciplinary rule.”

ECF No.

24, at 1 n.1.

Also on August 13, 2014, Officer Janiszewski
interviewed the plaintiff about an allegation that he had been
“involved” with a female correctional officer, Delta Butler.
a part of that investigation, Officer Boggs seized an incoming
2

As

letter from “Rebecca Hart” in the mailroom, and Officer
Janiszewski seized another letter in the plaintiff’s possession
that was addressed to “Rebecca Hart.”

Seven weeks later, on October 1, 2014, the
Administrative Segregation Committee (“Committee”), comprised of
defendants Kelli Hinte, Sherrie Snyder and Cheryl Chandler,
presided over plaintiff’s administrative segregation hearing to
determine whether the plaintiff should be assigned to
administrative segregation upon his completion of the punitive
segregation sanction for prison rule violations.

ECF No. 8, at

5.
Administrative segregation differs from punitive
segregation in that administrative segregation “inmates are the
most serious institutional security and public risk within the
Division of Corrections.”
ECF No 73-1, at 13.

Admin. Segregation Policy Directive,

“An inmate who is serving sixty (60) days

Punitive Segregation will be reviewed by the Administrative
Segregation Committee within twenty-one (21) days prior to their
Punitive Segregation release.

If placed on Administrative

Segregation, the remainder of the inmate’s Punitive Segregation
sentence shall become null and void.”

Id. at 15.

The Committee

bases its decision to recommend administrative segregation upon
the preponderance of available information or evidence, such as:
3

(a) A record of disciplinary rule violations . . .
which shows a pattern or tendency of behavior, which
is . . . threatening to the inmates, staff, self, or
the public.
(b) Information from staff or other inmates
indicating that the inmate has engaged in or plans to
engage in activities which may be a threat to the
public, staff, self, or other inmates . . . .
* * *
(d) Specific information showing that the inmate is
involved in any behavior that disrupts the safe,
secure operation of the institution/facility/center .
. . .
Id. at 17-18.
Although the amended complaint is not clear, it
appears that the plaintiff completed or was serving his punitive
segregation for possessing contraband and compromising Officer
Linville when the administrative segregation hearing was held.
At the October 1, 2014 administrative segregation
hearing, Intelligence Officer Michael Shumate, in addition to
informing the Committee of the details of plaintiff’s charged
rule violations (compromising Officer Linville following the
compromise of Susan Trent two years earlier and possessing
contraband), presented evidence, (including photocopies of the
previously seized letters) to argue that Rebecca Hart was an
alias of Officer Butler’s and that the plaintiff had an
impermissible relationship with her.

The plaintiff maintains

that Rebecca Hart was a childhood friend.
4

The Committee did not

challenge the information presented by Officer Shumate nor did
it recognize that the plaintiff was never officially charged
with a violation for compromising Officer Butler, and instead,
is alleged by the plaintiff to have accepted Officer Shumate’s
report as true.

The Committee placed the plaintiff in

administrative segregation based upon his past rule violations,
as well as Officer Shumate’s report regarding his alleged
relationship with Officer Butler.

Am. Compl., ECF No. 8, at 5.

The plaintiff initiated this action under 42 U.S.C. §
1983 on February 18, 2015 against the defendants for treating
him, as an African-American, differently and more severely than
they treated similarly-situated white inmates in similar
proceedings.

Plaintiff sought, as relief, the return of the

seized letters and release from administrative segregation into
the general prison population.
On March 31, 2016, after reviewing the magistrate
judge’s original PF&R, entered February 24, 2016, this court
dismissed Officers Boggs, Janiszewski and Shumate, finding that
the plaintiff had failed to state a plausible equal protection
claim against them.2

The court declined to adopt the magistrate

2

There is also no claim for illegal seizure of the “Rebecca
Hart” letters, and the plaintiff clarified as much in a surreply in which he states that he is not attempting to assert any
separate illegal seizure claim. ECF No. 36, at 1.
5

judge’s recommendation that the defendants’ motion to dismiss
the equal protection claims be granted against the Committee
members on the grounds that the plaintiff had not demonstrated
in his complaint that he was treated differently than others
similarly situated to himself.

The court re-referred

plaintiff’s equal protection claims against defendants Hinte,
Snyder and Chandler to the magistrate judge for further
consideration.

Before the magistrate judge could reach the

merits of the issue on re-referral, the plaintiff was released
from administrative segregation two months later on May 26, 2016
upon completion of the “Quality of Life” program.3

After his

release, defendants Hinte, Snyder and Chandler filed a
supplemental motion to dismiss, arguing that because the
plaintiff had been released from administrative segregation and
because they did not have possession of the “Rebecca Hart”
letters, the only two forms of relief sought in this case, that
plaintiff’s claims were moot.
The magistrate judge’s PF&R, entered January 6, 2017,
recommends that the defendants’ supplemental motion to dismiss
the amended complaint be granted and that this civil action be

3

The defendants assert that completion of the “Quality of Life”
program is required for inmates assigned to administrative
segregation. Defs.’ Mem. Supp. Supplemental Mot. Dismiss, ECF
No. 74 at 2 n.3.
6

dismissed from the docket of the court.

ECF No. 87, at 7.

The

plaintiff filed objections to the PF&R on January 17, 2017.
Defendants filed a response to plaintiff’s objections, to which
the plaintiff has replied.

II.

Standard of Review

“The Federal Magistrates Act requires a district court
to ‘make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or
recommendations to which objection is made.’”

Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (emphasis in original) (quoting 28 U.S.C. 636(b)(1)).

III. Discussion
Plaintiff’s initial objection is based primarily on his
belief that his claim is still redressable because he exhausted
administrative remedies in seeking return of his letters.

Obj. 1.

The magistrate judge reasonably declined to rule on the exhaustion
argument raised by the plaintiff because his claim is no longer
redressable.

A

PF&R, ECF No. 87, at 6, 7 n.1.

redressable

claim

is

one

in

which

the

preventing or requiring action will redress” the injury.

7

“judgment
Lujan v.

Defenders of Wildlife, 504 U.S. 555, 562 (1992).
“accord relief only against” parties in the case.

The court may
Id. at 568.

The plaintiff does not allege anywhere in his amended
complaint that defendants Hinte, Snyder, or Chandler were ever in
possession of the seized letters, let alone that they are currently
in

possession

of

those

same

letters.

In

fact,

the

amended

complaint asserts that Officer Shumate only showed the Committee
members photocopies of the “Rebecca Hart” letters. See Am. Compl.,
ECF No. 8, at 4; Pl.’s Resp. Defs.’ Supplemental Mot. Dismiss, ECF
No. 78, at 5.

The record also indicates that the plaintiff is in

possession of, or at least had access to, those same photocopies,
which were included with the filing by him, on December 22, 2016,
of six letters between the plaintiff and “Rebecca Hart.”

ECF No.

85, Exs. 2, 3.

Exhibit 2 contains three letters sent to the plaintiff.
Each envelope accompanying those three letters shows a return
address of P.O. Box 5053, Beckley, West Virginia 25801, with no
name associated with the address. In the letters themselves, there
is no mention of the name “Rebecca Hart,” instead the letters are
signed “Baby Dee” or “Dee Dee.”

See ECF No. 85-2.

contains three letters written by the plaintiff.

Exhibit 3
Each of the

envelopes accompanying these letters is addressed to “Rebecca
Hart” at the same P.O Box 5053 address provided above.
8

In each

letter, however, no mention is made of the name “Rebecca Hart.”
Instead, the letters’ salutations name “Donna” and then proceed to
refer to that person as “Baby Dee” or “Dee Dee.”

ECF No. 85-3.

In their supplemental motion to dismiss, the defendants
attached

the

affidavit

of

Brandon

Armstrong,

coordinator for the Division of Corrections.

the

grievance

ECF No 73-2.

Mr.

Armstrong stated on August 16, 2016, that, dating back to January
1, 2014, he searched for any grievances filed by the plaintiff
related to the confiscation of any letters or other papers and
found no such grievance.

Id.

Attached to his response, filed

August 31, 2016, the plaintiff filed a grievance form, dated
December 19, 2014, in which he asked only to be returned to the
general population for the same reasons he seeks redress from this
court.

ECF No. 76-4, at 2.

The plaintiff states in his response

to the defendants’ supplemental motion to dismiss that, despite
not seeking the return of his letters or mentioning them at all,
this grievance was based on the Committee’s use of the “copied
letters” and therefore, in his view, he had thereby initiated the
grievance process for their return.

Pl.’s Resp., ECF No. 78, at

2.

After

the

briefing

on

the

defendants’

supplemental

motion to dismiss had concluded, the plaintiff filed, on December
22, 2016, a grievance in which he sought the return of his letters,
9

dated September 21, 2016.

That grievance was denied for being

filed outside the time limitation provided in Mount Olive’s policy
directive.

ECF No. 85-1, at 2.

At the time the plaintiff filed

this latest grievance, Officers Boggs, Janiszewski and Shumate had
already been dismissed from the case and the plaintiff has not
amended

his

complaint

to

include

any

additional

information

regarding the seizure of the “Rebecca Hart” letters.

For
objection,

the

whereby

foregoing
he

seeks

reasons,

the

redressability

plaintiff’s
by

return

first
of

the

letters, is overruled.

In both plaintiff’s second and third objections, he
contends that the future seizure of letters to or from Rebecca
Hart and their potential use in future administrative
segregation proceedings falls under the mootness exception of
being “capable of repetition yet evading review.”

Obj. 2-3.

He

fears that, due to racial discrimination, he will be placed in
administrative segregation after any further correspondence with
Rebecca Hart and that the duration of that segregation will not
be long enough to allow for judicial review.

Id.

These

objections are made in response to the magistrate judge’s proper
finding that since the plaintiff was released from the
confinement from which he sought release, his equal protection

10

claims are moot.

PF&R, ECF No. 87, at 5-6 (citing Incumaa v.

Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007)).
The narrow mootness exception for conduct that is
“capable of repetition yet evading review” applies when “(1) the
challenged action is in its duration too short to be fully
litigated prior to cessation or expiration, and (2) there is a
reasonable expectation that the same complaining party will be
subject to the same action again.”

Fed. Election Comm’n v.

Wisc. Right to Life, Inc., 551 U.S. 449, 462 (2007).

The

magistrate judge found that because it is speculative that the
plaintiff would be placed in segregation for the same conduct in
the future, the plaintiff could not “meet the heavy burden of
establishing that his claim is capable of repetition yet evading
review.”

PF&R, ECF No. 87, at 6-7.

Moreover, with his history

of compromising female officers and employees at Mount Olive, a
further instance of the same misconduct may merit disciplinary
measure.
In Incumaa v. Ozmint, the Court of Appeals for the
Fourth Circuit issued a decision that is instructive as to
plaintiff’s objections.

There, the court would not “base [its]

mootness jurisprudence . . . on the likelihood that an inmate
will fail to follow prison rules.”

Incumaa, 507 F.3d at 289.

“Such ‘conjecture as to the likelihood of repetition has no
11

place in the application of this exceptional and narrow grant of
judicial power’ to hear cases for which there is in fact a
reasonable expectation of repetition.”

Id.

(emphasis in

original) (quoting Abdul-Akbar v. Watson, 4 F.3d 195, 206-07 (3d
Cir. 1993)).
Here, as in Incumaa, there is no clear probability
that plaintiff will be placed in administrative segregation by
the defendants based on racial discrimination absent a rule
violation.

See Policy Directive for Administrative Segregation,

ECF 73-1, Ex. C, at 13-19.

The prison is entitled to

investigate whether an inmate is compromising an employee.

This

might include examining letters to and from inmates which may
result in a rule violation.

See W. Va. Code § 15A-4-7

(permitting prisons to search inmates’ mail).

The court

declines to grant a mootness exception “on the likelihood that
an inmate will fail to follow prison rules.”
at 289.

Incumaa, 507 F.3d

The court agrees with the magistrate judge’s conclusion

regarding the mootness exception and denies the plaintiff’s
second and third objections.
Plaintiff’s final objection appears to assert that the
court should exercise its authority under 18 U.S.C. § 3626
(“Appropriate remedies with respect to prison conditions”) to
grant relief correcting violations of his federal rights.
12

Obj.

4.

Inasmuch as plaintiff does not articulate an argument in

this objection but merely restates certain sections of the
statute, this objection is overruled.

IV.

Conclusion

Accordingly, it is ORDERED as follows:
1. That the plaintiff’s objections to the PF&R be, and they
hereby are, overruled;
2. That the magistrate judge’s Proposed Findings and
Recommendation be, and they hereby are, adopted and
incorporated in full;
3. That defendants’ supplemental motion to dismiss be, and it
hereby is, granted; and
4. That this civil action be dismissed and stricken from the
docket of the court.
The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record and to any
unrepresented parties.
ENTER: March 27, 2019

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